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Purchase of a property in France by Hong Kong resident: key elements to be taken into consideration

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When it comes to buying a property in France for a French national residing abroad, some difficulties in carrying out the process may arise. These may in particular be related to the (1) the financing of this project and (2) its signature by means of a power of attorney.

1.    Legal opinion:

Getting a loan from a bank located in France can sometimes be more delicate if the borrower is not a French resident. Indeed, some banks can be quite cautious and reluctant as they will find it more difficult to check the borrower’s financial situation and background information.

It is noted that lending criteria can vary tremendously from one bank to another. Nevertheless, generally speaking, before lending money banks will carefully take into consideration the following elements with regards to the borrower:

•    The level of income and indebtedness;
•    The amount of the personal contribution;
•    The professional situation;
•    Place of residence; and
•    The guarantee.

In addition to these elements, in the context of an application for a loan made in some foreign countries such as Hong Kong or Dubai, some banks will require from the borrower to provide a “Legal Opinion” signed by a qualified lawyer in the country of residence of the borrower. 

This legal opinion confirming information regarding the situation of the borrower (personal status, capacity to enter into a loan agreement, no indebtment…) will be a condition precedent to making this loan to the borrower.

A template of Legal Opinion is generally provided by French banks.

One can expect that the local lawyer will only have to sign the template for minimal fee. However, the local lawyer drafting the legal opinion will be responsible for each statement contained in this document and it is therefore critical for him/her to check that they are all correct (knowing that most of the supporting documents will be in another language). His/her work will also consist in amending the template sent by banks and ensure it complies with the Hong Kong law requirements. Therefore, this kind of file is time consuming and one should expect a local lawyer to spend at least a few hours working on it.

In addition, even though the Legal Opinion is drafted and signed by a Hong Kong lawyer, it requires the assistance of lawyers qualified in French law for the verification and analysis of all the documents provided by the borrower as well as the explanation of the rules of French law.

Seeking the assistance of a firm which includes both local and French lawyers who are familiar with this type of document and transaction is essential. Endless back and forth exchanges with the banks and some potential misunderstandings on the content of the Legal Opinion may indeed delay the release of funds.

2.    Power of attorney:

In France, a Notaire is a public official responsible for receiving all the “actes” and contracts to which the parties wish to confer the seal of authenticity, to assure their date, to hold them in trust and to deliver authentic copies of them. The Notaire has the monopoly in matters relating to purchases, sales, exchanges, co-ownerships, land plots, leases, mortgages etc.

Given the international pandemic, many buyers find it difficult to travel to France to sign in person the deed of sale at the Notaire’s office. Therefore, they usually sign over a power of attorney and send it to the Notaire in charge of the transaction.

a.    Private form/public form

There are two types of powers of attorney for France: those in private form (“acte sous seing privé”) and those in public form (“acte authentique”). 

The difference lies in the fact that a power of attorney in private form is established directly between the parties whereas a power of attorney in public form is received before a French Notaire. 

The nature of the document needed generally depends on the transaction undertaken.

Authentic powers of attorney are those made for the regularization of solemn deeds as in the case of a donation. Also in the context of the purchase of a property off-plan, French law provides that the power of attorney must be in public form. 

Regardless of the form of the power of attorney and even though a power of attorney in private form is more straightforward as it requires less formalism, the drafting will require the assistance of a local lawyer/Notaire to ensure the validity of the document.

Besides, the signature of a power of attorney in private form will have to be certified by the French consulate or a Notaire who can attest that it is indeed the person who signed the document.

b.    The specific case of Off-plan purchase (“Vente en l’état futur d’achèvement”)

France is one of the most secure countries in the world when it comes to buying off-plan property (VEFA) as buyers’ interests and money are protected by a number of clauses along the way.

As stated above, a power of attorney in public form is required for this type of transaction which means the document may need to be authenticated and signed before a Notaire in order to be valid and enforceable under French law.

It used to be possible to sign such power of attorney before French consulate and diplomatic services officials as an alternative to a French Notaire. However, since 1 January 2019, French consulate or embassy do no longer provide such notarial services.

This major change complicates somewhat the process as it may turn out to be an impossible mission to find a French qualified Notaire allowed to practice overseas.

Based on our recent experiences, it appears that some Notaires in France may be reluctant in accepting a power of attorney in public form executed before a Hong Kong qualified public notary but the rule does not seem absolute. Some Notaires may accept a power of attorney executed in these conditions. In any event, individuals who are facing this situation have to make sure with their Notaire beforehand this solution is feasible before considering it. 

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article. 

China – Update Statistics & Procedurals of Trademark Administrative Litigation

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With the high-speed development and improvement of China’s economic and judiciary practice, both Chinese substantive law and procedural law have been broadly developed in recent 20 years, particularly in respect of administrative litigation proceedings. 

LATEST STATISTICS

According to the latest monthly report issued by China Intellectual Property Administration (“CNIPA”) on trademark review cases (No. 2020.07), during the period of 16 June – 15 July 2020, the number and rate of administrative litigation got a rise. The detailed statistics are as follows:

Trademark Cases in relation to administration litigation

Court Level

Year over year rate

Month over month rate

1,894

The First Instance

Increase by 10.24%

Increase by 9.67%;

 

467

The Second Instance

Decrease by 28.37%

Increase by 40.66%;

20

Retrial, The People’s Supreme Court (“PSC”),

Decrease by 72.60%

Decrease by 67.74%.

The CNIPA also released total number and rate of administration litigation cases between the period of January – July 2020, namely:

Trademark Cases in relation to administration litigation

Court Level

Year over year rate

7,238

The First Instance

Decrease by 10.75%

2,990

The Second Instance

Decrease by 10.29%;

404

Retrial, The People’s Supreme Court (“PSC”),

Increase by 15.10%.

PROCEDURALS

If CNIPA maintains our application for review of refusal/non-use cancellation/invalidation unfavorable to our clients in the administrative examination proceedings, how can we seek judiciary remedy further? 

An appeal against such unfavorable decisions before the Beijing Intellectual Property Court (“Court”), i.e. an administrative lawsuit, can be lodged at a prescribed time.

THE FIRST INSTANCE

If an(a) applicant/registrant/opponent/petitioner is not satisfied with CNIPA’s decision on application/cancellation/opposition/revocation of the mark in connection with their rights, they are allowed to initiate an administrative lawsuit against CNIPA’s decision within 30 days (for foreign individual/companies/entities), and which is calculated from date receipt of the decision (or 15 days for domestic applicant) before the Beijing Intellectual Property Court (“Court”).

After initiating the appeal by the afore-mentioned deadline, the Court will grant the plaintiff (foreign individual/companies/entities) 3 months’ time to supplement notarized and legalized Power of Attorney (“PoA”) and personal identity/company documents to the Court as follows:

1.    PoA – signed by the representative of the company;

2.    Certificate of Legal Representative –signed by the said representative;

3.    Articles of Incorporation or Certificate of Incorporation of the plaintiff, showing the said representative has the authority to sign legal documents on behalf of the plaintiff; and

4.    Personal ID/passport (individual)/Certificate of Good Standing (company/entity) of plaintiff, indicating the current status of the plaintiff i.e. the company is subsisting on the register and active; the company is not subject to dissolution; and the company has not been liquidated, bankrupt, under custody or revoked. 

In general, the local Registrar of Companies (Companies House/Registry), who has issued a “Certificate of Incorporation of the company”, can issue document 4 above.

If all these notarized and legalized documents are in order, the Court will issue a notice of acceptance and set down a hearing for the case in around 1.5 months’ time, and make a decision in 2 – 3 months’ time.

Points to note:

  • It is advisable to send us copies of documents 3 and 4 above by email first, so we can ascertain whether they are in order before notarizing and legalizing by the Chinese Consulate to save time and cost. 
  • For Hong Kong companies/individuals, the said documents need to be notarized by a Hong Kong Lawyer who is appointed by the Ministry of Justice of China, i.e. China-Appointed Attesting Officer, and legalized and stamped by China Legal Services (Hong Kong) Co., Ltd. with their special seal for Hong Kong notarization.
  • In view of the Court may change their practices from time to time, and it needs time to arrange for official translation by the designated translation agent to prepare Chinese translation as requested by the Court, if any, it is advisable to have the notarized and legalized documents in hand preferably a month prior to the deadline, so we can confirm with the Court and therefore work with the translation agent.

THE SECOND INSTANCE

If any party is dissatisfied with the decision made in the First Instance, the party can appeal to the Beijing High Court (“High Court”) within 30 days (for foreign individual/companies/entities), which is calculated from date receipt of the decision (or 15 days for domestic applicant) from the CNIPA. 

There is no requirement of any further notarized and legalized documents from the plaintiff/applicant to appeal to the Hight Court. 

The High Court usually conducts paper examination under the appeal, grounds and evidence submitted by the parties, and seldom sets down a hearing unless it is necessary.

It takes the High Court 3-6 months’ time to issue an appeal decision. Once the appeal decision is issued, it becomes final.  

RETRIAL 

As you may note, retrial proceedings are exceptional to the two instance of court proceedings. General speaking, the chance of success in retrial proceedings before the Supreme People’s Court (“SPC”) is not optimistic. In addition, the SPC will even dismiss a retrial request directly.

Nevertheless, if there are obvious mistakes either in substantive rights or procedural rights that affected the decision issued in the Second Instance, requesting the SPC to retry the case is a remedy for the judge to correct the mistakes in the retrial proceedings.

From the second table above, there were 404 retrial cases between January – July 2020, which indicates the year over year increase by 15.10%. This is a significant number that shows a chance of success in overturning a final decision by way of retrial. In fact, the SPC did overturn many cases e.g. the landmark PRETUL case (the Supreme People’s Court – No. 2014 – 38). The SPC re-tried the case, and overturned the final decision. 

Moreover, could precedents be applied when ruling a case in the said Court proceedings above?

Although case law is not binding in China, based on the current practices, the judge tends to take into account of a precedent when ruling the case, if the plaintiff/defendant cites the precedent. This means precedents would facilitate to overturn the case in the Court proceedings above, which requests the Court to adopt the same reasoning.

This tendency has been indeed improved and ascertained by the SPC in its ‘Guidance on the Application of Law to Strengthen Research of Similar cases (Trial)’ coming into effect since 31 July 2020 (“Guidance”). For more details of the Guidance, please see the SPC’s official publication in Chinese at http://www.court.gov.cn/fabu-xiangqing-243981.html.

Thanks for reading and we will keep you updated of further interesting/meaningful development of PRC administrative lawsuits. 

Should you have any inquires pertaining to trademark right and protection in China, please contact evelyne.yeung@oln-law.com or angel.luo@oln-law.com, and we will be pleased to answer and assist.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Dealing with Vexatious Litigants in Civil and Administrative Proceedings

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A ‘vexatious litigant’ is someone who persistently pursues legal actions but does not have sufficient grounds for doing so, and usually exhibit the following hallmarks: 

  • Subjecting the defendant to inconvenience, harassment, expense out of all proportion to any likely gain (Attorney General v Barker [2001] WL 191122 (English Queen’s Bench)).
  • Repeating the same cause of action against the same party perhaps with minor variations (Barker, supra).
  • Automatically appeals or challenges every decision (Barker, supra).
  • Fails to take notice of or give effect to court orders (Barker, supra).
  • Non-compliance with procedure, e.g. last minute presentation of evidence, delay/non-compliance with deadlines, not following court orders, defective service or complete failure to serve, complaining that the other litigants should not be served or had not been served.
  • When present at a hearing, some vexatious litigants are unable to conduct themselves with decorum and may hurl abuse at the opposite parties and/or the judge (Ng Yat Chi v Max Share Ltd and Another [2005] 1 HKLRD 473 (CFA)).
  • Will almost invariably be unrepresented or refused legal aid based on the merits tests (Ng Yat Chi, supra)
  • Deceitful conduct (Yuen Oi Yee Lisa v Charoen Sirivadhanabhakdi & Ors [2015] HKDC 1336)
  • Appeals, using parallel appeal routes, and multiple proceedings, including to complain to administrative bodies, commencing new action for damages in District Court or High Court and seeking appeals to the Court of Appeal and Court of Final Appeal. (X v MM and Anor [2018] HKDC 215).

The vexatious litigant will try to apply for legal aid, but even if the vexatious litigant satisfies the means test, he/she may have trouble passing the merits test.  

Below are a few tools available to victims of vexatious litigation

 1.    Injunctions

An injunction is an order of Court that requires a party to refrain from doing a specified act (prohibitory injunction) or to do a specific act within a specified period (mandatory injunction). 

Examples of prohibitive conduct in the context of vexatious litigation:

  • Disclosing confidential/personal information to unrelated third parties (except for obtaining legal advice).
  • Harassing the innocent party (e.g. by sending letters/emails/telephone calls).
  • Making/publishing defamatory statements against the innocent party.

Examples of mandated conduct in the context of vexatious litigation:

  • Disclosing the list of parties to whom information now protected by an injunction has been disclosed.

2.    Strike out/strike out based on res judicata

The Court may on its own motion or on application, and at any stage of the proceedings, order a pleading to be struck out or amended on the basis that it: 

(a) Discloses no reasonable cause of action or defence, as the case may be; or 
(b) Is scandalous, frivolous or vexatious; or 
(c) It may prejudice, embarrass or delay the fair trial of the action; or 
(d) It is otherwise an abuse of the process of the court.

Strike out based on res judicata is often used to bring the vexatious claim to an end on the basis that after a matter has become the subject of adjudication, the Court will not (except under special circumstances) permit the parties to later reopen the same matter.

3.    Restricted Application Orders/Restricted Proceedings Orders/s. 27 High Court Ordinance (Cap. 4) orders

Practice Direction 11.3 establishes two orders that the Court can make to stop vexatious litigants with respect to their future conduct: Restricted Application Orders (“RAO”) which restrict vexatious litigants from pursuing current proceedings and Restricted Proceedings Orders (“RPO”) which restrict vexatious litigants from pursuing defined multiple proceedings that have already been commenced.  

A s. 27 High Court Ordinance (Cap. 4) order is the most draconian and restricts the vexatious litigant from pursing any future proceedings unless the Court’s leave has been obtained. 

4.    Default judgment

As vexatious litigants are often non-compliant with procedure, including with deadlines, obtaining default judgment under Order 13 Rules of High Court (Cap. 4A) (“RHC”) can be a quick way to dispose of the proceedings or to obtain the desired relief.

5.    Unless orders

If directly applying for striking out/summary judgment is not desirable, the innocent party may choose to rely on obtaining unless orders, and by utilising the vexatious litigant’s failure to comply with Court directions, proceed to strike out the action or obtain final judgement.

6.    Summary judgment

In the context of vexatious litigants, summary judgment under Order 14 RHC provides the quickest way to obtain certain orders such as a permanent injunction, assuming that neither striking out nor default judgment applied/was successful.

7.    Committal Orders

Under Order 52 RHC, the Courts have a general power to make an order for committal based on contempt of court (e.g. on breach of injunction or breach of an order of court). This is especially useful if the vexatious litigant consistently fails to comply with Court orders and there is no other way to stop the vexatious litigant.

8.    Order to prohibit publication and Anonymity Order

The use of anonymity orders and publication bans protect the identity of the innocent party and minimizes the embarrassment/damage to the reputation of the innocent party. 

If you wish to learn more about how to deal with vexatious litigants, please feel free to speak to our litigation partner, Eunice Chiu.

Eunice Chiu
+852 2186 1885
Partner, Dispute Resolution
Oldham, Li & Nie

China – Trademark Electronic Application

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With the China Intellectual Property Administration (“CNIPA”)’s Announcement to “Regulations of Trademark Electronic Application (No. 323)” on 27 August 2019, taking effective from 1 September 2019, the majority of trademark matters now can be filed through CNIPA’s E-filling system, such as applications for trademark registrations, assignment, change of names/addresses, renewal of registration and deletion of goods/services, for more matters, please see the list below. The E-filling system is obviously more convenient and efficient, in particular, nowadays, distancing working is required/recommended during the outbreak of the COVID-2019 pandemic. 

E-filling of Trademark matters: 

1. Application for trademark registration; withdrawal of trademark application
2. Change of name/address of registrant/applicant
3. Change of regulations/authorized user of certification/collective marks; withdrawal of the change
4. Change of trademark agent/address for services; withdrawal of the change
5. Deletion of goods/services; withdrawal of the change
6. Recordal of assignment of application/registration; withdrawal of the recordal
7. Early termination of trademark license recordal
8. Removal of registered trademark; withdrawal of the removal
9. Recordal of trademark license; withdrawal of the recordal
10. Recordal of change of name of licenor/licenee; withdrawal of the recordal
11. Issuance of trademark registration certificate
12. Issuance of trademark registration certificate for international registration designating China
13. Correction of trademark application
14. Re-issuance of trademark registration certificate
15. Re-issuance of change of assignment renewal certificate
16. Change of agent (change of name/address of the agent)
17. Application for review of refusal

In addition, CNIPA offers applicants 10% discount of official fees if the application is filed via E-filling system. We set out the processes of the most popular use of applications for trademark registration i.e. E-filling Vs Paper filling as follows:

ProcessesE-fillingPaper filling
Application formOnline inputOriginal signed application form
Filling timeOnline submit before 8 pm on working daysSubmit in person before 4:30 pm on working days; ormail the application form by currier, but the filling date is the date when CNIPA confirms receipt
CorrespondingNotices of filling receipt, corrections (if any), refusal (if any), publication and registrationElectronically notificationsPaper notifications
Official costRM￥270/US$45 per applicationRM￥300/US$50 per application

The comparison above shows E-filling is not only more flexible, but also time/cost effective. 

We therefore will use e-filing unless we are instructed to do otherwise, or in some cases when E-filling is not applicable. For instance, the descriptions of goods are not in standard description. 

Should you have any trademark matters/questions pertaining to filling strategies and protection in China, please contact vera.sung@oln-law.com or angel.luo@oln-law.com and we will be pleased to answer and assist.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Emigration from Hong Kong to Taiwan: The Importance of Pre-Migration Tax Planning (6)

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Among all the destinations, Taiwan is always one of Hong Kong people’s favorite choice for emigration, likely because of its relatively affordable living standard, similar language and culture and democratic lifestyle. According to data from Taiwan’s Ministry of the Interior, immigration from the Hong Kong to Taiwan has increased by 28 percent from January to July in 2019. 

This article will examine from a taxation perspective the considerations which a person should pay due regard to before emigration, so as to better plan for future taxes which might arise at the time of and after the emigration to Taiwan.

Overview of Ways to Obtain Taiwan Citizenship

Taiwan offers a number of pathways to citizenship through permanent residency, covering family, study, business innovation, investment, and employment.

Individuals who wish to immigrate to Taiwan shall first obtain the Alien Resident Certificate (similar to the green card in the United States). This Alien Resident Certificate allows individuals to legally stay in Taiwan based on the fact that they are working in Taiwan under the permission, or being married to a Taiwanese spouse, or being an investor having invested over a certain amount of capital with the approval by the relevant authorities in Taiwan etc.. 

1.    Investment

If you opt for the investment route, you shall first apply for a resident visa for investment and then the Alien Resident Certificate. The criteria for obtaining an investment visa in Taiwan is relatively less demanding comparing with some other popular choices for migration, especially for applicants from Hong Kong and Macau. 

Applicants from Hong Kong and Macau may make an investment of at least NTD6 million (i.e. around USD200,000 or HKD1.5 million) in a private Taiwanese company in order to be eligible for making an application for the investment visa and the Alien Resident Certificate. They may then apply for naturalization as Taiwanese directly after:- (a) 1 year of legal residency, during which the applicant cannot leave Taiwan for more than 30 days; or (b) 2 consecutive years of legal residency and having been physically present in Taiwan for at least 270 days per year.

Non-Hong Kong and Macau applicants may opt for the following alternative route for obtaining an Alien Permanent Resident Certificate (the “APRC”) (i.e. permanent residence permit) thus Taiwanese citizenship, in which case the applicant will not be required to be physically present in Taiwan during his residency:-

a. Making an investment of NTD15 million in a Taiwanese business which creates 5 or more full-time jobs for Taiwan nationals for over 3 years, in which case the applicant is required to have held the Alien Resident Certificate for over 3 years before making the application for the APRC; or

b.  Making an investment of NTD30 million in the government bonds of Taiwan for over 3 years, in which case the applicant is required to have held the Alien Resident Certificate for over 5 years before making the application for the APRC.

Foreign nationals who own the APRC and have legally and continuously resided in Taiwan for 5 years and having been physically present in Taiwan for at least 183 days per year can apply for naturalization as Taiwanese.

2.    Studies

Graduates from universities in Taiwan may apply for permit to work locally thus residency in Taiwan. Permanent residency and naturalization as Taiwanese may then be applied for after the applicant resides in Taiwan for 5 years legally and continuously and having been physically present in Taiwan for at least 183 days per year. 

Alternatively, graduates from universities in Taiwan may first return to their home place of residence to work for 2 years or more, and apply for permit to work locally thus residency in Taiwan. Permanent residency and naturalization as Taiwanese may then be applied for after 1 year in fastest cases. 

3.    Business innovation

You may apply for a Taiwan entrepreneur visa and residency if any of the following requirements is met:-

a. Having received venture capital investment or international fundraising in your business innovation of more than NTD2 million;

b. Having received approval to reside at a recognized innovation park or incubator in Taiwan;

c. Having obtained patent rights or professional skills certificate;

d. Having been awarded in a leading startup or design competition, or has been involved in a foreigner entrepreneurship project in Taiwan;

e. Having been or is currently located in a startup accelerator recognized by the Taiwanese government;

f. The enterprise or the person in charge of the enterprise has been nominated or awarded in a film festival;

g. Having received innovation subsidy of at least NTD3 million from the central government or at least NTD1 million from the local government;

h. Having possessed innovation capability specified or recommended by the Taiwanese government; or

i. Legal representative, manager or director of an established enterprise with innovation capability in Taiwan with an investment of at least NTD1 million.

Permanent residency and naturalization as Taiwanese may then be applied for after 5 years in the fastest cases. 
 
4.    Skilled immigrants

Applicants being professional at certain fields, including accountants, lawyers, medical practitioners, architects etc. may apply for Taiwan residency through its skilled immigration program.

They may then apply for naturalization as Taiwanese after:- (a) 1 year of legal residency, during which the applicant cannot leave Taiwan for more than 30 days; or (b) 2 consecutive years of legal residency and having been physically present in Taiwan for at least 270 days per year.

5.    Family reunion

Like other countries, one may also immigrate to Taiwan on the basis of family reunion, if he has a direct relative or a spouse with Taiwan citizenship. 

Overview of Taxation in Taiwan 

For personal income tax, the progressive tax rates of personal income tax in Taiwan range from 5% to 40%. Similar to Hong Kong, Taiwan levies personal income tax on a territorial basis (i.e. only Taiwan sourced income (for both resident and non-resident) is subject to income tax in Taiwan). That being said, for Taiwan resident whose income is derived from sources outside Taiwan, such income is subject to alternative minimum tax (“AMT”).[1] As for capital gain, Taiwan does not tax capital gains separately. All gains, unless otherwise specifically exempted by the applicable laws, are taxed as ordinary income.

For corporate income tax, a Taiwan resident company is taxed on its worldwide income. The current corporate income tax rate is 20%. Similar to the treatment on individuals, there is also no separate capital gains tax in Taiwan for companies.

Hong Kong currently does not have a comprehensive treaty for double taxation with Taiwan. This essentially means that, for example, in the absence of bilateral tax concessions, a Hong Kong citizen or alien in Taiwan whose income has a Hong Kong source can be taxed twice, once in Hong Kong based on Hong Kong’s territorial source principle of taxation, and another time on AMT paid in the Taiwan. That being said, Taiwan provides unilateral tax credit relief in respect of foreign-sourced income – income tax paid in other countries on income derived outside Taiwan may be credited against one’s total income tax liability in Taiwan. It is also worth noting that double taxation on the income received by people and companies across Taiwan and China is alleviated by the Act Governing Relations between the People of the Taiwan Area and the Mainland Area, but Hong Kong is not a party thereto.

Pre-migration Tax Planning

Pre-migration tax planning is particular important to people (especially Hong Kong resident) who are planning to immigrate to Taiwan for the following reasons:-

1. Taiwan has a higher corporate tax rate and individual income tax rate compared to Hong Kong;

2. There is no capital gain tax in Hong Kong, whilst capital gain is taxed as ordinary income and subject to personal income tax as high as a rate of 40% (compared to the cap of 17% in Hong Kong) or corporate income tax of 20%;

3. There is no tax on dividends in Hong Kong, whilst dividends can be taxable in Taiwan; and

4. There is no estate duties in Hong Kong, whilst the same exists in Taiwan (which will be further discussed below).

We list out hereinbelow some of the pre-emigration preparation which one may need to consider in order to properly plan his/her tax affairs before immigrating to Taiwan.  

Trust 

Unlike Hong Kong, estate tax exists in Taiwan and the same will be levied on the following estate properties:-

1. Property remained by the deceased who was a Taiwan citizen and regularly resided in Taiwan, regardless of the location of the property; and

2. Property left by the deceased who was a Taiwan citizen but resided outside Taiwan regularly, or who was not a Taiwan citizen, if the property is located within Taiwan.

Estate tax rates in Taiwan range from 10% for net taxable estate amount of or under NTD50,000,000, to 20% for net taxable estate amount of or over NTD100,000,001. Accordingly, for individuals (especially high-net worth individuals with properties located in other countries) who are planning to immigrate to Taiwan and acquire Taiwan citizenship, it would be advisable to set up a trust before the migration, such that estate taxes can be saved in respect of the trust assets.

How the trust shall be structured is another important issue. Under Taiwan tax laws, gift tax would be levied for:-

1. Gift made by a donor who is a Taiwan citizen who regularly resides in Taiwan, regardless of the location of the gifted property; 

2. Gift made by a donor who is not a Taiwanese citizen or a Taiwanese citizen residing outside of Taiwan as long as the property is located within Taiwan. In determining whether the property is located in Taiwan, a gifted property to a trust would be deemed as locating in Taiwan (even though it might not be physically present in Taiwan) if the residence of the trustee is Taiwan. The donor i.e. the settlor of such trust in the circumstance would then be subject to gift tax. 

Gift tax rates in Taiwan range from 10% for net taxable gift amount of or under NTD25,000,000, to 20% for net taxable gift amount of or over NTD50,000,001. Accordingly, one would need careful consideration and shall seek professional advice on the trust structure (including timing of settling the trust (i.e. whether the settlement shall be done before acquiring Taiwan citizenship), choice of settlor, choice of trustee, choice of trust assets etc.) so as to minimise any gift tax arising from the settlement of the trust.

Capital Gains and land value increment tax for real estates

If one intends to acquire real estates in Taiwan, he may also need to consider the holding structure of such properties as any transfer of real estates in Taiwan is subject to, inter alia, significant land value increment tax and capital gain tax, and that there are also different tax treatments in relation to the rental income generated from these real estates by corporate/individual, or Taiwan/non-Taiwan residents. 

Land value increment tax is computed based on the increase in the assessed value of the relevant land since the last ownership transfer. Land value increment tax rates vary from 20% to 40%, while capital gain tax rates in respect of transaction of real estates in Taiwan range from 15% to 45%, depending on the holding period and the residence of the parties. 

Conclusion

As could be seen above, however attractive the “Formosa” might be, in terms of taxation, Taiwan is a less friendly jurisdiction to taxpayers compared to Hong Kong. Accordingly, careful pre-migration tax planning is required and tax advice shall be sought before one moves to Taiwan.

OLN provides a range of migration, corporate restructuring and tax advisory services.  If you have any questions on the above, please contact one of the members of our Tax Advisory Team. 

Disclaimer: This article is for reference only. Nothing herein shall be construed as Taiwan or Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

[1] Residents with AMT taxable income exceeding NTD6.7 million is subject to an AMT tax rate calculated by the following formula:- (Income subject to AMT – NTD6.7 million)x20%. Separately, any overseas income exceeding NTD1 million is reportable.

Assistance from Hong Kong Courts Available to Foreign Liquidators

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It is not uncommon that foreign administrators/liquidators see the needs to seek enforcement or exercise their power in Hong Kong. The legal position in this regard is by and large aligned with the rest of the common law world in that Hong Kong Courts would recognize and assist foreign liquidators upon conditions being satisfied. The liquidator will then be able to exercise powers as if it were a local liquidator subject to certain limits. Importantly, this includes power to initiate actions.

Can Foreign Administrators/Liquidators put forward Corporate Rescue Plans in Hong Kong?

Many jurisdictions have formal corporate rescue regimes aiming at helping companies survive financial distress by letting those companies reorganize debts and trade out of difficulties, such as the Chapter 11 procedures in the United States and administration in the United Kingdom. Hong Kong lacks such formal corporate rescue framework. The closest alternative available is a “scheme of arrangement”, which is neither an insolvency nor a bankruptcy process, and can be used by both solvent and insolvent companies. 

Most recently in January this year, the Legislative Council Panel on Financial Affairs tabled a proposal to revive a corporate rescue scheme similar to the US Chapter 11 scheme which was previously examined after SARS. Key features include having the company file documents with the Companies Registry, appoint a provisional supervisor, and that there will be a moratorium on legal actions against the company. Only time will tell what other features the scheme will embody, such as whether the moratorium will enable cross-border actions to protect a Hong Kong company’s overseas assets. In the meantime, the primary restructuring tool in Hong Kong remains the scheme of arrangement.   

How does a Scheme of Arrangement Work?

A company in fiscal difficulty might compile a proposal for its creditors, proposing terms for a compromise of the company’s debts so that creditors may accept a lesser amount in full settlement of the debt. It should be noted that even where a company is undergoing a winding-up procedure, the liquidator has power to initiate a scheme of arrangement.

Once the proposal has been finalized, the application is made to the Court for its approval to convene meeting of each class of affected creditors. In each of the meetings, the scheme must be approved by both a majority of at least 50% in number, and a majority in number presenting at least 75% in value of the voting creditors. Then, upon the Court’s approval, an order sanctioning the scheme will be made. Such order will bind all creditors of the company, even if they did not vote. 

Comparison with the UK CVA

Laws of Hong Kong relating to insolvency are derived from that of the UK. The latter has evolved with progressive development whereas the HK’s insolvency regime is lagging behind. In the UK, in addition to the scheme of arrangement which largely resemble that in Hong Kong, financially-stricken companies might also opt for company voluntary arrangement (“CVA”). 

A CVA allows a company to agree a composition or an arrangement with its creditors in satisfaction of some, or all, of its debts. To be effective, a CVA requires the approval of the requisite majorities of the company’s creditors and shareholders. In the case of creditors, a majority of three-quarters or more (in value) of those responding must vote in favour of the proposals to approve the CVA. As for shareholders, it requires more than half in value of the company’s shareholders present in person or by proxy and voting at a meeting on the resolution to approve the CVA.

Once the CVA is approved by both creditors and shareholders, it binds all the company’s unsecured creditors who were entitled to vote at the meeting (even if they did not vote). However, a CVA cannot bind secured or preferential creditors without their consent. In addition, it must not unfairly prejudice the interests of any creditor.

The below table sets out key differences between schemes of arrangement (whether in Hong Kong or the UK) and the UK CVA:-

 Scheme of arrangementCVA
Court involvementExtensive court involvementCourt involvement only if the CVA is challenged
Shareholders & creditors involvementOnly creditors vote on the scheme of arrangementShareholders’ majority also required
Effect over secured and preferential creditorsSecured and preferential creditors can be bound by a schemeSecured and preferential creditors not bound by CVA without consent
MoratoriumLacks the ability to impose a moratorium on creditor actionsStatutory moratorium only available for small companies (turnover ≤ £10.2m; balance sheet assets ≤ £5.1m; and ≤ 50 employees)
Effect on contractsMight not trigger insolvency-related cross-defaults; outside the scope of statutory insolvency regimeWould trigger insolvency-related cross-defaults in company contracts

What kind of company can invoke a scheme in Hong Kong?

Apart from companies incorporated under the Companies Ordinance in Hong Kong, the Courts of Hong Kong may also approve schemes of arrangement having a “sufficient connection” with Hong Kong, as evidenced by factors such as listing on the Hong Kong Stock Exchange, having creditors/management located in Hong Kong etc. In other words, foreign-incorporated companies, such as those in offshore jurisdictions, can also apply for approval of the scheme (as long as they can establish a sufficient connection with Hong Kong). It is therefore common for a foreign company with debts and liabilities in Hong Kong to seek the Court’s sanction for a scheme of arrangement in Hong Kong.

If you as a receiver or liquidator of a foreign-incorporated company would like to seek approval for a scheme of arrangement in Hong Kong, our firm’s team of experienced lawyers will be able to assist in matters including but not limited to devising a restructuring strategy, advising on each step of the restructure, negotiations with creditors if necessary, as well as preparation of proposed terms of the scheme. We will also be able to offer bespoke advice on the suitability of implementing a scheme and whether other alternatives are available to the company, so as to tailor to the specific needs of each company.  

Is Statutory Moratorium Available in HK? 

There is no statutory moratorium on creditor actions prior to a scheme of arrangement becoming effective, which practically means that any creditor can take legal action against the company. The company, during the process of restructuring, is therefore still susceptible to enforcement action by creditors or winding up petition and might still be exposed to risk of its restructuring efforts being thwarted.

In view of the lack of moratorium in schemes in the insolvency context, often case companies negotiating a scheme might at the same time initiate a provisional liquidation/liquidation to effectively create the necessary moratorium. By virtue of section 186, Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32)(“CWUMPO”), when a winding-up order has been made, or a provisional liquidator has been appointed, no proceeding shall be proceeded with or commenced against the liquidating company (except with leave of Court). This in effect creates a moratorium on creditor actions against a company which has entered liquidation/appointed a provisional liquidator. 

What if a Foreign Statutory Moratorium is sought to be enforced on Hong Kong assets/liabilities?

There are limits to the Hong Kong Court’s ability to provide assistance to foreign office holders. For instance, in Joint Administrators of African Minerals Ltd v Madison Pacific Trust Ltd where a UK administrator sought assistance from the Hong Kong Court in recognising a UK moratorium, the Hong Kong Court refused to provide assistance because the Court’s power to assist foreign liquidation was limited to the type of order available to a liquidator in Hong Kong. At present, Hong Kong does not have any equivalent mechanism to administration, and in particular there is no statutory provision which provides for a moratorium on the enforcement of a secured debt. Providing assistance to the administrator to enforce a moratorium would be an impermissible extension of common law principles.

As to what might happen if a foreign liquidator seeks a court order imposing moratorium over a Hong Kong company as part of a group restructure, the issue was considered in Re CW Advanced Technologies Limited, which involved a Hong Kong company, being part of a Singapore-headquartered corporate group held by a Cayman holding company. The group applied to the Singapore court for a 6-month moratorium (“SG Moratorium”) while it underwent restructuring. The group and the company’s largest creditor, Bank of China, took out an application to appoint provisional liquidators over the Hong Kong company. Harris J held that provisional liquidators be appointed, but did not give them power to pursue debt restructuring (e.g. by using the SG Moratorium). 

For the Hong Kong Court to recognize and assist foreign office holders in liquidation, certain conditions must be met (for details, please see our article “Legal Update: Hong Kong Court Recognizes Application by Shanghai Liquidators”). It was unclear whether the SG Moratorium was a collective insolvency proceeding for common law recognition purposes. Even if it was, there was no Hong Kong authority on whether the court may recognize a foreign insolvency proceeding where the foreign jurisdiction was not the country of incorporation. And even if the SG Moratorium was eligible for recognition, there was no Hong Kong authority on whether the court may assist by appointing provisional liquidators. In the end, the Court left open the issue whether it should recognise foreign moratoriums in the future. 

Whether the Hong Kong Court will recognize foreign moratoriums largely depends on the facts of each case. Factors to be considered include the place of incorporation of that company in liquidation, the processes taking place in Hong Kong, and eligibility of foreign creditors for Hong Kong Court’s assistance. If the company in question does not have tangible existence in its place of incorporation (i.e. it is a mere brass-plate), and that no winding-up proceedings are taking place in Hong Kong where it has no material assets/creditors, it might just be that foreign liquidation is the most appropriate way to wind-up the company. In such circumstance, recognition will likely not be granted to a foreign moratorium. 

What Enforcement Actions may be taken in Hong Kong?

Given that Hong Kong does not have debtor protection insolvency regimes like the US Chapter 11 regime or UK administration, rights of secured creditors in Hong Kong are generally unaffected by liquidation or schemes because neither a liquidation (until winding up order has been made or provisional liquidator appointed) nor a scheme (until implemented) provides for a stay or moratorium on security enforcement. Commencement of insolvency procedures does not affect a secured creditor’s rights as they are entitled to be paid out of the proceeds of their security (unless transaction is subject to claw back by liquidator e.g. in unfair preference, undervalue transactions, extortionate credit transactions, dispositions in compulsory liquidation etc.) 

Generally, once a security is enforceable (e.g. upon default), the lender can enforce its security immediately. Depending on the nature of the security, enforcement could be by way of appointment of a receiver, foreclosure or taking possession. As for enforcement of judgments, the enforcement methods depend on the nature of the judgment. Where a judgment or order is for payment of money (not payment into court however), the judgment may be enforced by a Writ of fieri facias, garnishee proceedings, charging order or appointment of receiver (also in the case of judgment or order is for payment of money into court). Judgments for possession of land are enforced by a Writ of possession.  

a.    Receivership – whereby a receiver would be appointed to take physical possession of and sell a collateral.

b.    Foreclosure – empowering mortgagee to take possession of mortgaged property and become the absolute owner of the foreclosed property, extinguishing the equitable rights of redemption by the debtor i.e. the mortgagor. 

c.    Possession and distraint order – commonly used by landlord to regain possession of premises where the debtor fails to pay rent.

d.    Garnishee order – Court order which would direct a third party such as bank to pay any amount owed to the debtor to the creditor directly.

e.    Writ of Fieri Facias – Writ which allows goods to be seized and sold by public auction. and the proceeds of sale handed to the judgment creditor.

If you have any question regarding the topic discussed above, please contact our partner Anna Chan at anna.chan@oln-law.com for further assistance.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.